Savair Mfg., Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Savair Mfg. Co. and Joseph C. Hankins. Case 7-CA- 13281 September 20, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 1, 1977, Administrative Law Judge Irving M. Herman issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief, and has decided to affirm the rulings, findings,1 and conclusions of the Administrative Law Judge, to modify his Remedy,2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent Savair Mfg. Co., Warren, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods pnor to August 25. 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE IRVING M. HERMAN, Administrative Law Judge: This case was heard before me on February 9-10, 1977, in Detroit, Michigan. The charge was filed by Joseph Gilbert Hankins, an individual, on August 18, 1976, and duly and I Certain errors in the transcript have been noted and corrected. 232 NLRB No. 15 timely served on Respondent. The primary issues are whether Respondent violated Section 8(a)(1) and (4) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151 et seq.), herein called the Act, by refusing to hire Hankins because of his protected concerted activities and/or because he had sought the assistance of the National Labor Relations Board. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed on behalf of the General Counsel and Respondent, I make the following: FINDINGS AND CONCLUSIONS I. RESPONDENT'S BUSINESS Respondent is a Michigan corporation and maintains its principal office and place of business in Warren, Michigan, where it is engaged in the manufacture, sale, and distribu- tion of parts for pneumatic and hydraulic control valves and related products. During the year ending December 31, 1975, a representative period, Respondent, in the regular course of its business, shipped products valued in excess of $100,000 directly to other points in Michigan where they were incorporated into finished products which were then shipped directly to points outside Michigan by companies engaged directly in interstate commerce. Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Facts I. Hankins' prior employment by Respondent Hankins worked for Respondent for a period of about 6 months ending around mid-April of 1969. He was leadman in the turret lathe or screw machine department which included about two or three other employees. Around March 1969, the entire department engaged in a walkout to protest the failure to fulfill a promise of higher wages and the hiring of a new man at a wage equal to or higher than theirs. While the others punched out at lunchtime and remained in the parking lot beyond the lunch period, Hankins went up to the office, as their spokesman, to talk to their supervisors. He spent about an hour discussing the situation with their immediate supervisor, Fred Popek, the engineer, Ray Neck, and Wilbur (Bud) Fisher, the general superintendent and production manager, who was called in by Popek and Neck. The meeting was amicable and culminated in a 10-cent raise for the employees other than Hankins. 2 After the men returned, however, Popek asked Hankins whose side he was on, and shortly thereafter another man was hired at what Hankins believed was a higher rate than his and for the purpose, Hankins believed, of taking his job. Hankins testified that one of the 2 No explanation appears for the absence of a raise for Hankins. 156 SAVAIR MFG. CO. employees was fired about a week after the walkout, but Fisher testified that none of the men were disciplined because of the walkout. Fisher did testify as follows, Q. What was the result of your discussion with Mr. Hankins? A. We settled the thing in question, the amounts and so on that the men wanted. Q. Did you have any feeling as to whether-strike that. What was your reaction to the matters that he raised, the wages and the complaints that he raised? A. I had no reaction other than if they had a problem, I would like to have them come in and talk it over and let's get it straightened out. They didn't have to go as far as they did. The turret lathe department makes parts for the rest of the shop, so that a tieup in production there affects the production of the whole shop. Around early April in 1969, Hankins decided to quit Respondent's employ because of the hire of the man he thought was slated for his job. At that time Hankins was averaging about 56-58 hours a week. He testified that he informed Popek of his intention to seek another job and to leave as soon as he found one; and that Popek said that was fine with him, and then went on vacation. About a week later, Hankins located a job and advised Neck, who was then filling in for Popek, that he would be leaving the next day.3 Fisher testified without objection that Popek (apparently no longer in Respon- dent's employ), from whom he learned 2 or 3 days later of the quit, "was a little unhappy. He give (sic) him no notice." 4 From the time Hankins left Respondent until August 1976 Hankins spent no time as a turret lathe operator. At first he did other mechanical work, but since July 1970 he engaged in the business of supplying Christmas trees and firewood. 2. Hankins' 1976 application On August 2, 1976, Hankins telephoned Respondent for the purpose of obtaining a job. 5 He talked with Carroll Bridgeman who had apparently succeeded to Popek's position but had not known Hankins during his prior employment there. In answer to Hankins' inquiry, Bridge- man, who had authority to screen out applicants, acknowl- edged that they were hiring turret lathe operators. Hankins said he had worked there before but quit, and Bridgeman said he would check Hankins' record and return the call. Bridgeman called Hankins at his home about an hour or two later. 6 According to Hankins, Bridgeman said that the records showed Hankins had been terminated and that after talking to Neck he did not want to hire Hankins. He declined to tell Hankins what Neck had said, stating that that information was confidential, and, in response to 3 Hankins added on cross-examination, without contradiction, first, that he "[Plrobably," and then, that he definitely, had earlier given Neck the same kind of notice he had given Popek. Neck. still in the company hierarchy, did not testify. 4 If not hearsay, this last was an inference from the fact (if his further testimony is credited) that Popek never notified him that Hankins was leaving, although a supervisor would ordinarily bring such information to his attention. Hankins' statement that he had not been terminated but had quit, Bridgeman said "that wasn't the issue." Accord- ing to Bridgeman, after examining the company records he consulted Neck who informed him that Hankins was Lane's son-in-law and "That rang a bell"; he recalled Lane's having complained to him about Hankins in casual conversation over the past 2 or 3 years, as follows: Q. (By Mr. English) Mr. Bridgeman, will you tell us please what you recall at that moment Mr. Lane had told you in the past about his son-in-law Mr. Hankins? A. That they had worked together at one time and that his son-in-law had been let go or fired from the job for punching in and then leaving the place of employ- ment without telling the supervisor or without punching out, and this is why he was discharged, meaning, in my estimation, that the man was untrustworthy, that if he would punch in, that was one of the impressions that I got from talking to Charley. Q. What other impression did you get? A. That his son-in-law was lazy, would not go out and seek employment. Q. Why? Tell us what specifics were related, not the conclusions. A. One thing he told me his son-in-law had a lot of orders to chop wood, and he would not do it. He just let it go and slide and they could use the money but he would not chop the wood or cut the wood or whatever he was supposed to do and deliver it. This was on one occasion he mentioned this to me. Q. Was there any indication of any hostility between Mr. Lane and Mr. Hankins? A. Yes, there was. Mr. Lane told me on more than one occasion that he would quit our employment if he had to work with his son-in-law again. Accordingly, Bridgeman testified, he told Hankins in the second conversation that it would not be worth his while to come down and fill out an application, that he did not believe he wanted him as an employee because "I didn't care to hire problems or trouble and to me he presented a problem"; he did not recall any protest from Hankins or that Hankins asked him what he meant by calling Hankins a problem or trouble, and while he did not explain the terms to Hankins, what he had in mind was the fact that Hankins did not get along with Lane, Lane's account of Hankins' loss of a job because of the punching-in episode, and Hankins' having quit Respondent when he was needed in 1969. Bridgeman denied that the 1969 walkout had played any part in his decision to tell Hankins on August 2 that it would be futile to file an application although he admitted that he had learned about the walkout that day 5 Hankins' father-in-law, Charles (Chuck) Lane. who was also a turret lathe operator and who did not get along with Hankins. had informed him that Respondent was hiring turret lathe operators. 6 Hankins' call had been made from a friend's house. The friend, whom Hankins described as a practical joker. had told Hankins after the call that he had taped the conversation. Hankins did not know whether he had or not but mentioned the matter to Lane who apparently related it in turn to Respondent. 157 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when "[slome of the men mentioned it and so did Ray [Neck]" in the course of his inquiries concerning Hankins.7 On August 6, Hankins called Bridgeman to say that he had talked to people at the Labor Board s and been advised that he had a right to know why he was not being hired. He testified that Bridgeman said that he had been told by Neck that Hankins had "missed a lot of work," that he denied it, and Bridgeman advised him not to cause any trouble and that he could get a better job elsewhere. He also testified that he again raised the question of "termina- tion" on his record and that Bridgeman said that the term was probably used only to designate his last day of employment. Bridgeman testified that Hankins insisted in this conversation that the reason he was not being hired was his involvement "in some incident there at the plant," i.e., the walkout, that Bridgeman replied "that was the farthest reason of all," and that when Hankins continued to argue about it, he hung up on him. Hankins' testimony was that the walkout was not discussed in this conversation but the next day when he again called Bridgeman, 9 and the following ensued: A. I called Mr. Bridgeman and I said, "I'd like to get my record straightened out," and he said, "Look, Joe, I was nice enough to call you the first time, but I was aware of the problem that Fred had with the walkout when I come over to this shop, and I don't want to hire a problem." And I said something to the effect that I didn't cause the walkout, I believe in that conversation I said that. And he said, "Well, I just don't want to hire a labor problem," he said, "but I'll give you a good recommen- dation to get another job if you don't cause any trouble. But if you do, well, I can't." On August 9 Hankins called Eugene Wolfbauer, Respon- dent's vice president and told him that Bridgeman did not want to hire him because he felt the walkout had been Hankins' fault. According to Hankins, Wolfbauer said, "Well, you more or less stuck you neck out and got it cut off," Hankins said, "Well, yes," and Wolfbauer said, "Well, we have it on record who caused the protest, let me check it out and I'll get back with you." Wolfbauer's account of the conversation was that he told Hankins that he did not remember him or the walkout; that Hankins then asked him to talk to Bridgeman about giving him a job; and that he promised to pull Hankins' file and "I told him I would review his record, I would have a look at it, and I would see the conditions of him leaving the company." According to Wolfbauer, he also asked Han- kins what he had been doing in the interim and Hankins replied that he had been in "the landscaping business and chopping wood and so on." Hankins did not recall discussing this subject, but both agreed that Wolfbauer promised to call Hankins back. On August I I Hankins went down to the shop. He went to the office of Ray Neck with whom Bridgeman was lunching. He introduced himself and, according to his testimony, asked Bridgeman if the walkout was the reason 7 On cross-examination, Bridgeman changed "some" to "one." g In his conversations with the Company he referred to the Board as the Fair Labor Relations Board. he would not hire him, to which Bridgeman responded, "Yes, I don't want to hire a problem"; that he protested that the walkout had not been his fault and he had merely acted as the men's spokesman; that he told them he had been informed by people at the Labor Board that the walkout could not be used as a reason for rejecting him; that Bridgeman suggested he fill out an application and told him that his old application would not suffice; that he told Bridgeman that Gordon of Fairlane Tool, where he had gone to work after quitting Savair in 1969, would give a good recommendation, and Bridgeman said he would go over to his office in the adjoining building and call Gordon; that after Bridgeman left, Neck asked Hankins what he was going to do about his problem, and he replied he would try to work it out himself but, failing that, he would take it to the Board; that he then went over to the other building to get the application; that Bridgeman met him there and told him he had talked with Gordon who said that Hankins had missed 8 days in 8 months; that Hankins asked whether that was the reason he was not going to hire him and Bridgeman replied, "That's reason enough"; that they then got into an argument with Hankins charging Bridgeman with violating his rights and saying he would see Bridgeman in court with the Board, and Bridgeman replying that Hankins had violated his rights by taping the phone conversation; that Bridgeman, who had a blank application in his hand, told him to fill it out but that "it wouldn't do me any good"; that he grabbed the application from Bridgeman's hand and took it home where Lane told him that night to fill it out and submit it because it would be considered fairly. Bridgeman's version of the August 11 events was that Hankins commenced the conversation in Neck's office by stating he had come to tell his "side of the story"; that while Hankins then proceeded to deny responsibility for the walkout, Bridgeman shrugged his shoulders and said it did not matter to him, that the walkout did not interest him and that if Hankins wanted to "he could go right next door and get an application over there"; that about 10-15 minutes later, after he had returned to his office, he was called by Ann Glavin, the office secretary, to come to the front office to see a man who had refused to fill out an application and asked to see him; that when he got there he found Hankins "in a noisy, shouting mood"; insisting that filling out an application would be useless, and they could not refuse to hire him because of the walkout; that he in turn became angry and lost his temper "and I told him, well, you have to fill out an application. I said I can't do anything for you unless you fill out an application. He provoked me further. I told him I had already known that he missed quite a bit of time" at Fairlane Tool, and that he would have to fill out an application or leave, at which point Hankins took the application. Glavin, the secretary, testified that she called Bridgeman to come up front because Hankins had refused to fill out an application and asked to see him, and that when Bridge- man appeared, they argued about the application, Hankins saying that Respondent already had one on file and did not 9 Bridgeman recalled only one conversation with Hankins between August 2 and August I I, but he placed that on a Saturday about 4 days after the initial contact. 158 SAVAIR MFG. CO. need another, but that he finally took one and left. Although she could "hear the whole conversation" between the two "very well," her testimony is silent about the walkout and about Hankins' work at Fairlane. She also failed to corroborate Bridgeman's testimony of another applicant's presence in the office or waiting room at the time. She testified that when Bridgeman came in he called Hankins by name, and that she recognized the name "[f]rom doing payroll." Hankins firmly denied "refus[ing] to fill out an application at any time." 10 Hankins completed the application at home that night but "messed [it] up," and returned the next day, August 12, for another which he obtained from Glavin and filled out at the plant. Meanwhile, earlier that morning, Fisher, who by this time was in semiretirement, had come to the plant. He testified that at about 7:45 a.m., about 10 minutes after his arrival, Bridgeman, after talking with him about a new machine they had, reported to him the events of the preceding day, which he in turn immediately passed on to Wolfbauer together with his recommendation not to hire Hankins." Glavin called for Bridgeman to come to the office to see Hankins, and it was at that time that Bridgeman went to Fisher's office, explained what had happened the previous day and "dumped the matter in [Fisher's] lap." Both of them went to the conference room to meet with Hankins. Bridgeman testified that this was still in the morning. Fisher testified, however, that the meeting occurred in the afternoon and was immediately preceded by a second visit from Bridgeman who informed him of Hankins' presence and asked him to accompany him because Bridgeman did not wish to handle the situation himself in view of "this problem" he had indicated that morning. The meeting proceeded more amicably than had been expected. Hankins and Bridgeman exchanged apologies for their prior conduct and shook hands. Fisher testified that he was aware before the meeting started that Hankins had "threat[ened]" to go to the Labor Board.'2 Hankins apparently raised the subject of the walkout, asking Fisher if he remembered the incident, and, according to him, Fisher said "that wasn't the issue" but that he recalled that Hankins had been the spokesman. Hankins further testified that Fisher added that the fact that Hankins had gone to the Labor Board could affect his employment because the men might bring him their problems; and that Bridgeman stated that he couldn't walk through the shop without the men making some kind of remark about taking him to court, and that "We had trouble with the [Labor i' The testimony of Respondent's witnesses suggests no explanation for the unlikely sudden outburst by Hankins who had only just left Neck for the express purpose of obtaining the application which filing until that date Bridgeman had admittedly indicated would be futile. " "The only reason" for this recommendation "was due to the trouble [Hankins ] had caused" on the I I th. 12 He stated that he had been informed, inter alia, that Glavin had been one of those so threatened. Her testimony contained no reference thereto. 11 Bridgeman. ;hough present, gave no testimony concerning the details of the meeting, confining himself to his having entrusted the matter at that point to Fisher. 14 Fisher testified that he believed that despite Hankins' mistake of leaving the Company when he was badly needed, they had rehired people before who had made mistakes, and he felt that Hankins could he brought back and given a trial. Wolfbauer confirmed that Respondent has no firm policy against rehiring employees who are discharged or quit. Board] before, but we can get out of it, but it's a lot of paperwork we don't need." Fisher denied ever saying that Hankins would not be considered for employment because he had complained to the Board. According to him, however, Hankins himself said that he would not press the matter before the Board and that any statements to the contrary had regrettably been made in anger.i 3 Fisher and Bridgeman asked Hankins if he could handle the job in view of his absence from that type of work since his last employment and whether he could work nights, and were reassured on that score, which was important because, as Fisher testified, Respondent "really did need help" at that time. The meeting concluded with Fisher's promise to have Vice President Wolfbauer get back to him. As of that time, according to their respective testimony, Hankins expected to be hired and Fisher intended to make such a recommendation to Wolfbauer. 14 Fisher, however, according to his testimony, "didn't get the time" to contact Wolfbauer until the following afternoon, August 13. Meanwhile, on the morning of the 13th, Wolfbauer had called Hankins and, according to Hankins, told him that he had quit and been replaced and there was no reason to take him back. Hankins testified that Wolfbauer then abruptly hung up.'5 Wolfbauer's version of this call was that he told Hankins he would not be hired because of his unreliability as manifested by his having quit on short notice at a time when his help was needed. In any event, Hankins called Wolfbauer back,' 6 and told Wolfbauer that other men who had quit had been rehired and he wanted to know why he would not be considered; and, according to Hankins, Wolfbauer replied he did not wish to waste more time discussing it, that he felt that Hankins might have "other motives" for wanting to work there. 7 Hankins said he had not been responsible for the 1969 walkout, the other men having merely chosen him as their spokesman, whereupon Wolfbauer admittedly asked, "didn't they ask you to be their leader, and he said yes." According to Wolfbauer's direct examination, his judg- ment not to hire Hankins had followed receipt of, and rested upon, Glavin's report that Hankins had quit after working there about 6 months; Neck's report about Hankins' involvement in the 1969 walkout and that the quit had been on a couple of hours' notice, thereby disrupting the work schedule; Bridgeman's report of his initial phone conversation with Hankins in which Hankins had allegedly protested against having to file a new i5 Hankins had tned to get Wolfbauer on the phone about twice between their earlier conversation and August II but had been unable to reach him. Wolfbauer testified on cross-examination that the purpose of such calls was "to tell him that I had looked over his file and that I would not give him his job back." Despite suggestions by counsel on redirect that this determina- tion was merely "some tentative conclusion" or "some decision," Wolfbauer acknowledged that he had indeed "made up [his I mind" by that time. iS Hankins testified it was within 10 minutes of the first call. Wolfbauer testified it was in the afternoon. 17 Wolfbauer testified that Hankins opened the conversation by saying he had been "unprepared" for Wolfbauer's earlier call, and that this raised a suspicion in Wolfbauer's mind that Hankins was taping the conversation Hankins testified that he had not used "those words" or anything to the effect that he was not prepared for the earlier call but that he did say that he wanted some explanation beyond Wolfbauer's curt statement. 159 DECISIONS OF NATIONAL LABOR RELATIONS BOARD application, and Bridgeman's report of Lane's statement about taped conversations; and the events of August 1 I.1 Indeed, Wolfbauer testified specifically that the events of August 11 affected his decision. But while admitting that Fisher's adverse recommendation on the 12th had thus confirmed his judgment19 Wolfbauer testified that he did not know what he would have done if Fisher had made a favorable recommendation.20 In disavowing either the walkout or Hankins' going to the Board as a motive for denying his rehire, he testified as follows in respect to the walkout: Q. What, if any, effect did that have on your decision to hire or not hire Mr. Hankins? A. I couldn't even remember the incident. I had to keep recalling it, and I had to think back in time. It was an incident where it was not significant, and I wasn't even involved in it. However, Wolfbauer acknowledged on cross-examina- tion that in his September 20 affidavit given to the Board agent during the investigation he had stated as the only reason for not hiring Hankins that "he had quit without notice and was unreliable"; and that in fact, as indicated supra, his decision had been reached prior to learning of Hankins' visit of August 11 and without the benefit of Fisher's adverse recommendation but was based on what Neck had told him which included Hankins' involvement in the walkout. When Fisher did get around to seeing Wolfbauer on the afternoon of the 13th, testified Fisher, Wolfbauer told him that he had turned Hankins down, and Fisher made no mention of his change of mind as a result of his meeting with Hankins on the 12th because he felt that Hankins' rejection was now "a completed matter." Hankins thereaf- ter delivered a letter to Fisher requesting reconsideration of his application in preference to his pressing the instant proceeding because, according to the letter, "All I wanted was a job, I don't want to cause any unnecessary trouble or time." Fisher transmitted the letter to the main office, but Hankins never received a response. B. Concluding Findings 1. The merits This case turns on credibility, I find Hankins' testimony more credible than that of Respondent's witnesses. I was particularly impressed with the fact that, notwithstanding 18 On cross-examination Wolfbauer testified he had learned of these events from Bridgeman. He was confused, however, as to the number and times of his conversations with Bridgeman, and he ultimately admitted that he had not talked with Bridgeman on the 11 th. Wolfbauer acknowledged on redirect examination that the information concerning the events of the I 1th had come from Fisher on the 12th. '9 On redirect Wolfbauer testified that if Hankins had been hired he would have had to work directly under Bridgeman. 20 Fisher testified that Respondent had never rejected an applicant he had recommended for hire. 21 I note, specifically, the failure to call Neck to dispute Hankins' version of the notice that he was quitting in 1969. The failure to impeach Hankins' denial that he was collecting unemployment insurance; the absence of evidence to contradict Hankins' testimony-indeed Fisher's corroboration thereof-that no other employees were present when Hankins acted as the employees' spokesman during the 1969 walkout; the failure to produce Lane minor variances, he essentially clung to his account despite a cross-examination repeatedly marked by insinuations of falsehood based on innuendo usually signaling forthcom- ing evidence from Respondent that never eventuated.2 1 In contrast, as indicated by the foregoing factual reciting, not only is the testimony of each of Respondent's witnesses inconsistent in material respects with that of his associ- ates,22 but Wolfbauer's testimony in particular is a mass of internal contradictions in its essentials. That Respondent engaged in no other unfair labor practices is a factor to be considered in determining the likelihood of its having committed the instant ones. But unless Hankins' clear testimony is discredited, that Respondent's agents indicat- ed their displeasure over his participation in the walkout and gave him impermissible reasons for rejecting his job request, the violations must be found. On the entire record, I see no basis for not believing him. On the contrary, I find corroborative of his version some elements in Respondent's own testimony. Respondent's contention that Hankins' reliance was upon an incident long forgotten does not fit this record. Despite the fact that the walkout occurred in 1969, Fisher remembered it, including Hankins' role as spokesman and the details involved in resolving the underlying dispute. And Fisher's recollection was apparently one of resentment over the resort to the walkout-"They didn't have to go as far as they did." Moreover, Neck's recollection of the event was sufficient for him to mention it to Wolfbauer, if indeed Wolfbauer needed reminding. In response to Wolfbauer's question whether Neck knew Hankins, according to Wolfbauer's own testimony, Neck recalled just three things: Hankins had done good work in the screw machine department; he "had been involved" in the walkout; and he had quit work on a couple of hours' notice. When, in their second conversation of August 13, Hankins sought to belittle his role in the walkout, Wolfbauer admittedly said, "Didn't [the other employees] ask you to be their leader?" In light of this, I find Wolfbauer's protestations that he "couldn't even remember" the walkout and that the incident "was not significant" less than compelling. This conclusion is buttressed by the numerous other inconsis- tencies in Respondent's position and evidence. Wolfbauer started out by professing to have relied on every factor that might conceivably have furnished ground for rejecting Hankins. Only when confronted with his affidavit 23 to the effect that the single reason he had given Hankins was his having quit on short notice did Wolfbauer concede that at least some of the factors initially cited to impeach Hankins; the utter lack of substance to the alleged suspicion concerning the taping of phone conversations-not only does the very fact that Hankins mentioned the incident to Lane tend to rule out any basis for suspicion in view of the ill feeling between them, but if there had been some insidious purpose, it is hardly likely that Hankins would have had Bridgeman call him back at his own home rather than at his friend's or in lieu of Hankins' calling Bridgeman again. 22 1 note especially the events of August 12, including the discrepancies between Bridgeman's testimony and that of Fisher as to the occasion for informing Fisher of the occurrences of the 11th, and the time of their meeting with Hankins. From Bridgeman's account, it would have been impossible for Fisher to have contacted Wolfbauer prior to meeting with Hankins, as Fisher testified and Wolfbauer implicitly confirmed. 23 Made barely 5 weeks after the event and some 5 months before the hearing herein. 160 SAVAIR MFG. CO. could not possibly have entered into his decision which had indeed been reached prior to the occurrence of these events. And yet, Respondent's brief not only continues to cite factors which Wolfbauer's testimony ultimately disa- vowed but even adds others which Wolfbauer had never claimed to rely on.24 Thus, nowhere in Wolfbauer's testimony does he suggest a linkage between the decision not to hire and Hankins' 6-year absence from the trade, or Hankins' alleged statement that he had been unable to get along with Popek, or the fact that his hire would have put him under Bridgeman,2 5 or that Lane may have thought Hankins lazy and unreliable and had allegedly said he would never work with Hankins. 26 Nor can I accept Fisher's testimony concerning his failure to carry out his averred intention to revise his recommendation to Wolfbauer following the meeting with Hankins on August 12. Wolfbauer had never ignored a recommendation from Fisher to hire an employee. Fisher had every reason to believe 1hat Wolfbauer had acted in this case, at least in part, on the basis of his recommenda- tion. To treat Wolfbauer's report that he had rejected Hankins as afait accompli, despite Fisher's knowledge that Wolfbauer had had his adverse recommendation before him when he telephoned Hankins, I find too strange to credit, particularly in view of Fisher's awareness that Respondent "really did need help" at that time. Fisher certainly had nothing to lose by simply informing Wolf- bauer that "the only reason" for his adverse recommenda- tion had vanished. Indeed, in all the circumstances, he would have been uncharacteristically derelict in his duty to Respondent by withholding the new information. I believe either that he did in fact convey it before or after Wolfbauer's call to Hankins, but that it was decided to stand by the decision not to hire Hankins; or alternatively, that he did not transmit the information because he knew that it could not have caused Wolfbauer to change his mind. But if the reason for Hankins' rejection had merely been his precipitous quit, as Wolfbauer testified, Fisher might have reminded him of his having once rehired, even over Fisher's objection, "a man [who] had been fired sometime before that for not reporting for work, staying away from work, and he was warned a number of times." I credit Hankins, particularly noting the absence of testimony by Neck, that Hankins gave fair notice of his quit in 1969 and that Respondent had no reason to believe 24 Respondent's propensity for exaggeration is also manifested elsewhere in its brief, as e.g., by its attribution to Hankins, "before he has any indication that he may be rejected," of "frequent contacts with NLRB staff," notwithstanding his first contact with the Board was precipitated by Bridgeman's phone call on August 2, telling Hankins not to bother filling out an application because he was not wanted; or by its reference to Glavin, still Respondent's secretary, as "a totally independent witness," and again "an independent and obviously unbiased witness" (ibid). 25 This was mentioned for the first time on Wolfbauer's redirect examination, and, as stated, without making the connection. If Wolfbauer had claimed this as a basis for rejecting Hankins, the record does not support it. Bridgeman and Hankins had composed their differences on the 12th, and there is no evidence that Bridgeman disagreed with Fisher's expressed view that Hankins should have been hired. 26 I specifically discredit the alleged statements that Lane would never work with Hankins. I note not only Respondent's failure to call Lane as a witness but the fact that it was Lane who informed Hankins of the availability of the job in question. I credit Hankins as to this, as I also do his testimony that Lane told him to fill out the application. I deem it a fair otherwise. But even if I did not credit Hankins in this regard I would find Wolfbauer's declared reason for not hiring him a screen for the real reasons, at least one of which I find to be his leadership role in the walkout. This after all, had been a subject to Hankins' conversations with Respondent's entire hierarchy, and the fact that Hankins may have been the one to raise it does not detract from its significance. 27 Moreover, Neck had mentioned the walkout to both Bridgeman and Wolfbauer when they consulted him about Hankins' application.2 And Bridgeman admit- tedly told Hankins he did not want to hire "a problem." I credit Hankins' testimony that Bridgeman said "labor problem." I further find that Respondent's determination not to hire Hankins was motivated in part by Hankins' resort to the Board, as evidenced by Fisher's and Bridgeman's remarks to Hankins on August 12. Wolfbauer must also be deemed to have known to Hankins' invocation of Board help since Hankins had advised Bridgeman, as early as August 6, of information he had already obtained from the Regional Office. Respondent's contention that it "had no knowledge or belief that [Hankins] would file charges" with the Board is sheer nonsense. It rests on two points, first, that "as of August 31," Hankins undated letter to Fisher "reinforced his earlier statements that he was not threatening to file charges . . . and would not do that .... " (ibid),' and second, that Hankins "by his own admission never, at any time referred to the NLRB but rather to the 'FAIR LABOR RELATIONS BOARD,' "and that in view of the proliferation of government agencies "and particularly various labor law boards including the agency administering the Fair Labor Standards Act," the General Counsel failed to meet his burden in this regard. As to the first point, the so-called "earlier statements" consist of a single statement attributed to Hankins by Fisher at the August 12 meeting which Hankins denied making. But more important, the date August 31, which Fisher testified he stamped on the letter, is virtually incredible on its face in the context of this case. Not only do the contents of the letter support Hankins' testimony that it antedated the charge,29 which was filed on August 18, but the service of inference that, despite the animosity between them, Lane's concern for the welfare of his daughter's family was an ovemding consideration. In any event, it does not appear that Wolfbauer knew anything whatever about Lane's opinion of Hankin's reliability or Lane's alleged unwillingness to work with Hankins. 27 Indeed, despite Hankins' testimony that he raised the matter with Wolfbauer, the latter testified that he might have raised it himself 28 At least one employee had also mentioned the walkout to Bndgeman. 29 The letter reads in full as follows: Dear Mr. Fisher, In regards to my refused employment at Savair. I do not want to get into a personality assination contest with anyone at Savair. I have talked with the people at the Fair Labor Relations, and they have talked with the company attorney. The Fair Labor Relations wants me to file an affirmation so that they can send investigators to the shop. But before I do that, I want to appeal to you again to talk with me (Continued) 161 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the charge by registered mail on August 20,30 utterly precludes Respondent's contention. Respondent's second point enjoys no greater credence. It misstates the records in asserting that Hankins "never, at any time referred to the NLRB," for the letter just discussed specifically mentions the "N.L.R.B." in the same context as it does the "Fair Labor Relations Board." To suggest, as does Respondent, despite its background of prior litigation with the Board, that it could have been so confused as to lack "knowledge or belief" of Hankins' intention to invoke the protection of this Act is nothing short of preposterous. Accordingly, the refusal to hire Hankins, in addition to violating Section 8(aX)() of the Act, violated Section 8(a)(4). General Nutrition Center, Inc., 221 NLRB 850, 855 (1975); Mitsubishi Aircraft International Inc., 212 NLRB 856, 866 (1974); cf. N.LR.B. v. Scrivener, 405 U.S. 117 (1972). 2. Procedural contentions a. Section 10(b) Respondent urges the 10(b) limitations period as a bar to this proceeding, citing Bryan Manufacturing Co.31 The contention plainly lacks merit. Obviously, it can have no possible application to the 8(a)(4) aspect of the case which involves no events antedating the 6-month period. As to the other facet, the contention is specious. I would have supposed it to be beyond cavil that an employer's statement to an employee at the time of discharge (within the 6-month period) that he is being fired for having engaged in protected activity a year earlier is not within the bar. That is essentially what we have here. This is at worst a case where anterior events are "utilized to shed light on the true character of matters occurring within the limitations period," which the statute does not bar. Bryan, at 416. It is most certainly not a case "inescapably grounded on events predating the limitations period" (id. at 422) or even one where "the evidence in fact marshalled from within the six month period is not substantial, and the merit of the allegations in the complaint is shown largely by reliance on the earlier events" (id. at 421). b. Production of statements Equally unmeritorius is Respondent's contention that it was not afforded sufficient time at the hearing to examine Hankins' statements given during the course of the investigation. At 11:25 a.m. Respondent's counsel, who was accompanied by cocounsel, requested "approximately 2 hours" to study the three statements in question. They totaled 40 pages, about half typewritten and half single- about this matter. All I wanted was a job. I don't want to cause any unnecessary trouble or time. If you don't want to talk to me and you feel there is nothing to say. Then I will have no other choice but to go to the N.L.R.B. If I felt that I wasn't a good machine operator and I couldn't do the job, I would forget the whole thing. However, I have been working on machines since I was 16 years old. And I have the ability. And I feel the reasons you don't want to hire me have nothing to do with my ability. And if I can't be judged on my ability then I might as well throw away the time I spent learning. Because I won't be able to use it. spaced longhand. The witness' direct examination had consumed only 14 double-spaced pages of the typewritten transcript of testimony. I recessed the hearing until 1 p.m. for lunch and counsel's examination of the statements, and at his request authorized him to remove the statements from the hearing room for this purpose. Upon reconvening at I o'clock, counsel requested "additional time." I offered him 5 minutes and denied his request for "at least another half hour" which he further stated was "only minimal." Compliance with such tactics can result only in stopping this agency from conducting its legitimate business. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6). and (7) of the Act. 2. Respondent violated Section 8(a)(1) and (4) of the Act by refusing to hire Joseph Gilbert Hankins on and after August 2, 1976, because he had engaged in activity protected by Section 7 of the Act and sought to invoke the Board's jurisdiction. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY In order to remedy the unfair labor practices found herein, my recommended Order will require Respondent to cease and desist therefrom and, because the violations here go to the very heart of the Act, from violating the Act in any other manner. Moreover, in order to effectuate the policies of the Act, my recommended Order will require Respondent to offer employment to Hankins in the job he applied for or in a substantially equivalent position, and to make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of a sum of money equal to that which he would have earned from August 2 to the date of a valid offer of employment, less net earnings during such period to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend the usual posting of notices. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 32 The Respondent, Savair Mfg. Co., Warren, Michigan, its officers, agents, successors, and assigns, shall: I. Cease and desist from: Thank you, Joseph G. Hankins 30 Evidenced by the return receipt. 31 Local Lodge No. 1424, International Association of Machinists, AFL- CIO [Bryan Manufacturing Co.] v. N.L R. B., 362 U.S. 411 (1960). 32 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 162 SAVAIR MFG. CO. (a) Denying employment to any applicant for engaging in any activity protected by the National Labor Relations Act. (b) Discriminating against any applicant for employment to discourage the filing of charges or giving evidence under the National Labor Relations Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Joseph Gilbert Hankins employment in the position for which he applied or in a substantially equivalent position, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section of this decision entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Warren, Michigan, copies of the attached notice marked "Appendix." 33 Copies of the notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 33 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT deny employment to any applicant for engaging in any activity protected by the National Labor Relations Act. WE WILL NOT discriminate against any applicant for employment to discourage the filing of charges or giving evidence under the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL offer Joseph Gilbert Hankins immediate employment with backpay. SAVAIR MFG. CO. 163